1990 PLP 379 (MLD)

3. Muhammad Siddique, appellant being dissatisfied with the order of the trial Court, preferred an appeal before the District Judge, Muzaffarabad. His appeal was dismissed on two counts:‑ (i) For want of limitation; and (ii) for want of right of appeal, against the consent decree.

4. Mr. Abdur Rashid Abbasi, the learned counsel for the appellant, argued that the appeal before the District‑Judge was in time, as the period consumed in securing the copy of the decree of the subordinate Court was to be excluded. On second point, it was argued that the impugned decree of sub‑Judge was not a consent decree as contemplated under section 90 (3) of the Code of Civil Procedure, because Muhammad Siddique was not a party to the compromise effected between Fiyyaz Akbar Shah and Noor Hussain. In the alternative, he emphasized that the decree may be set aside in exercise of revisional jurisdiction of this Court.

5. The limitation for preferring an appeal against the order of Sub‑Judge was thirty days from the date of the decree and order appealed from. The period suffered in securing the copy of the decree, was to be excluded, as contemplated under section 12(2) of the Limitation Act. The impugned decree was passed by the learned Sub‑Judge on December, 27, 1984. The limitation started running from the time of the announcement of the order and decree. The period of thirty days was completed on January

26. The appeal was presented on January

28. The application for the copy of the judgment and decree was moved by Muhammad Siddique on January

2. It was delivered to him on the same day. This factual aspect is established from the certificate made on the copy as well as the application of Muhammad Siddique moved before the learned District Judge on December, 28, 1986, for condonation of delay. In para. 2 of the said application, it was admitted that the copy of the decree was secured on January 2 and the revision was addressed to the High Court on January 23rd. As the copy was issued on the same day, only the period of one day is to be excluded from the limitation. Thus, the appeal was beyond time by one day.

6. It is enjoined upon the appellants, seeking condonation of delay, to explain the cause of delay to the satisfaction of the Court. In present cast, no explanation has been furnished. Likewise, the application moved before the learned District Judge for condonation of delay, despite being belated, contains no substantial cause accompanied by convincing evidence. In the circumstances, the appeal was rightly dismissed for want of limitation.

7. It was pointed out by the learned counsel for the respondents that the memorandum of appeal, before the learned District Judge was not accompanied by the copy of judgment of the trial Court. Thus, the provisions of Rule 1 of Order 41, Civil Procedure Code were violated. It is correct that the memorandum of appeal before the learned District Judge was not accompanied by copy of the judgment, on which the decree in appeal, was founded. This was a mandatory provision. But this objection was not raised before the learned District Judge. As a consequence of the omission to take up the objection, the learned District Judge has not resolved this point.

8. On presentation of appeal, the process was issued to the respondent without an objection of absence of the copy of the judgment. In the circumstances when the process was issued and the appeal decided on merits, it has to be accepted that the learned District Judge impliedly dispensed with the filing of the copy of the judgment of the trial Court. The learned District Judge is vested with the discretion to dispense with the copy of the judgment of the trial Court, the decree of which was appealed from. Such a power of the Court exists under Rule 7(1) of Order 41, of the Code.,

9. Section 96(3) of the Code, postulates that no appeal shall lie from a decree passed by the Court with consent of parties. Rule 3 of Order 23 relates to a compromise decree. It provides that where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where a defendant satisfies the plaintiff in respect of the whole or any part of the subject‑matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to the suit. The provisions of rule 3 empower the Court to pass a compromise decree, on the satisfaction that the compromise was lawful and that the dispute between the parties was settled to their satisfaction in fair manner. The requisite conditions, therefore, are: (i) That the compromise must be in respect of subject of dispute or part of it; (ii) it is between the parties to the proceedings; (iii) that the compromise is lawful; and , (iv) that the Court is satisfied of fulfilment of the aforesaid conditions.

10. The term "consent decree" contemplated under section 96(3) is to be construed primarily alongwith the provisions of Order 23 Rule 3 of the Code. Rule 3 of Order 23, though does not control the meaning and scope of the term "consent decree" yet these provisions being relative to the term "consent decree", arc to be read together for convenience of argument. The word "consent" as defined in Webster's New International Dictionary, means: "to agree; to be in harmony or concord, esp: in opinion; statement, or sentiment; to be of the same mind

voluntary accordance with, or concurrence in, what is done or proposed by another; acquiescence; compliance; approval; permission." Rule 3 of Order 23 does not use the term "consent" and instead, it contains the term "agreement or compromise". The term "consent" does not refer to a reciprocal adjustment of interest, whereas the words "agreent" and "compromise" do contain the scope of reciprocal or mutual adjustment of the points of disagreement or dispute. Be that as it may, the decree passed in the light of the provisions of Rule 3, has to be construed as a consent decree, as contemplated under subsection (3) of section 96 of the Code. The scope of term "consent decree" was examined in Lai's case, PLD 1961 Lahore

823. The relevant observation is:‑ "The word "consent" or the term "consent decree" is nowhere defined in the Civil Procedure Code. In the language of Webster's New International Dictionary, the word "consent" means: "voluntary accordance with; or concurrence in what is done or proposed by another". The word "consent" is also defined in section 13 of the Contract Act in the following terms: "Two or more persons are said to consent when they agree upon the same sense." It would appear, therefore, that the decree contemplated in subsection (3) of section 96 is a decree passed by the Court on the basis of a proposal made by one party and concurred in or agreed to by the other. In other words, this is a decree which is not the result of an adjudication by the Court but springs from the agreement or the concord of the parties themselves. One of the familiar procedure in this behalf is contained in rule 3 of Order 23 of the Civil Procedure Code, which is to the following effect:‑‑ "Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject‑matter of the suit, the Curt shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit:" We have no hesitation in saying that when a decree is passed in accordance with an adjustment, agreement, compromise or satisfaction recorded under the provisions of this Rule, it should be regarded as a "consent decree". A contrary view has no doubt been expressed in Ranuka and others v. Onkar and others where it was observed that "every decree which has incorporated an agreement, compromise or satisfaction ordered to be recorded under Order 23 Rule 3, Civil Procedure Code, is not ipso facto a decree passed by the Court with the consent of the parties, within the meaning of Section 96(3) of the Code. It may deal only with a part of the subject‑matter of the suit or it may be a contested agreement, compromise or satisfaction which has been the subject of an issue, trial and decision by the Court." The learned Judicial Commissioner, who decided that case, went on further to say that "a decree passed on a finding arrived at by the Court against the consent of one party to the effect that the matter in dispute has been compromised, is not a decree passed with the consent of parties and section 96(3) has, therefore, no application to it." This view was, however, dissented from by a Division Bench of the Lahore High Court in Gurcharan Singh v. Gurdev Singh and others and it was held that "if there is no doubt that the decree is in accordance with the recorded compromise, which has been held finally to have been made with the consent of the parties, as the parties, at the time of the consent must have contemplated the issue of the decree, which is a mere formal expression of the compromise, the decree is a decree passed with the consent of the parties within the meaning of section 96(3)." The learned Judges comprising the Division Bench approved of the decision in Govindaswami Kadavaran v. Kaliaperumal Munavathiryan in which it was observed that the consent decree does not merely mean a decree passed with the consent of the parties expressed at the moment the decree is passed, but also includes a decree passed on the basis of an agreement recorded under Order 23, rule 3, even though the agreement may be resiled from at a later stage. This conclusion was reached on a consideration of the fact that Order 23, rule 3 has to be read with Order XLIII, rule 1. clause(m), which gives a right of appeal from an. order recording or refusing to record an agreement alleged to have been made between the parties, with the result that once it is held that an agreement or compromise had been arrived at between the parties, the element of consent must be presumed to exist in relation to any decree passed on the basis of such an agreement or compromise between the parties."

11. In present case, it is noticed that a decree was passed on the basis of the compromise effected between Fiyyaz Akbar Shah and Noor Hussain. Muhammad Siddique was not a party to the compromise. It is further noticed that the compromise travelled beyond that land in dispute i.e. 4 kanals out of survey number 178/1‑man and included 6 kanals land from survey number

178. The other aspect is that the previous decree passed ex parte against Muhammad Siddique, was also in respect of the land measuring 10 kanals out of survey number 178/1‑min, Survey number 178 measuring 6 kanals was not in dispute, in both the suits. Muhammad Siddique is, prima facie, the owner of survey number

178. The impugned decree was, obviously passed against his interest. The aforesaid facts lead to the conclusion that .the decree was not passed strictly in compliance with the provisions of Rule.3 of Order 23 of the Code. The agreement between the parties, necessarily affected the third person, the owner of the land of survey number

178. Unless it was admitted by Muhammad Siddique that Fiyyaz Akbar Shah or Noor Hussain was owner in possession of survey number 178, no decree could have been passed with respect to that land. The compromise between Fiyyaz Akbar Shah and Noor Hussain in respect of land measuring 6 kanals out of survey number 178, was obviously, not a lawful agreement. This suggests that the impugned decree was not, strictly speaking a consent decree, as contemplated under subsection (3) of section

96. The appeal was therefore permissible.

12. Mr. Abdur Rashid Abbasi, the learned counsel for the appellant, urged that in case the appeal was liable to be dismissed for want of limitation, this Court was empowered to set aside the decree in exercise of its revisional jurisdiction. Ordinarily, the revision lies in a case where no appeal lies. In present case, it is already held that an appeal was definitely provided against an order 'of the trial Court. Therefore, the impugned order was not to be reversed in exercise of revisional jurisdiction. It is agreed that revisional jurisdiction of this Court is very wide and vast as compared to the revisional powers of our counter part in Pakistan. But these powers arc to be exercised sparingly, particularly where no right of appeal was available and the impugned order was found patently beyond jurisdiction. It is noticed that Muhammad Siddique has already instituted a Suit on the basis of his title in the land, in respect of which, decree has been passed in favour of Noor Hussain. The suit is still in progress before the trial Court. He is free to seek the redress of his grievance by seeking amendment to challenge the propriety of the impunged decree, if so allowed by law.

13. The appeal is, therefore, dismissed. No order as to costs. H.B.T./386/H.C.A. Appeal dismissed,